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In re Cuda

Supreme Court of New York, Fourth Department

June 7, 2013

IN THE MATTER OF GARY D. CUDA, PETITIONER, HON.
v.
MICHAEL L. DWYER, RESPONDENT.

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) to annul the determination of respondent to revoke petitioner's pistol permit.

DOREEN M. ST. THOMAS, UTICA, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his pistol permit. We reject petitioner's contention that he was denied a full and fair opportunity to litigate his claims. "It is well settled that a formal hearing is not required prior to the revocation of a pistol permit [where, as here, ] the licensee is given notice of the charges and has an adequate opportunity to submit proof in response" (Matter of Dlugosz v Scarano, 255 A.D.2d 747, 748, appeal dismissed 93 N.Y.2d 847, lv denied 93 N.Y.2d 809, cert denied 528 U.S. 1079; see Matter of Salem v Geraci, 27 A.D.3d 1175, 1176). Petitioner's further contention that the revocation of his permit violates the Second Amendment and the Equal Protection Clause of the United States Constitution is without merit (see Matter of Demyan v Monroe, 108 A.D.2d 1004, 1005). In addition, the court properly denied petitioner's request for his entire pistol permit file (see Matter of Vale v Eidens, 290 A.D.2d 612, 614).

Finally, we reject petitioner's contention that the determination to revoke his permit was arbitrary and capricious. Respondent has broad discretion to resolve factual and credibility issues when determining whether to revoke a pistol permit, and his determination is accorded great weight (see Matter of Manne v Main, 8 A.D.3d 790, 791; Matter of Gerard v Czajka, 307 A.D.2d 633, 633-634). Further, the record establishes that, when petitioner sought to amend his permit to remove certain restrictions, he did not inform the licensing agency that he had been arrested. It is settled that "[t]he failure of [a] petitioner to report on his [or her] application a prior arrest... provide[s] a sufficient basis to deny the application" for a pistol permit (Matter of DiMonda v Bristol, 219 A.D.2d 830, 830). Thus, respondent properly revoked petitioner's pistol permit on that ground (see Matter of Cohen v Kelly, 30 A.D.3d 170, 170; Ricatto v Kelly, 303 A.D.2d 240, 240).


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